United States District Court, S.D. Illinois
CHARLES R. HICKS, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. 11-cr-30207-DRH
MEMORANDUM AND ORDER
Herndon United States District Judge.
matter is before the Court on petitioner Charles R.
Hicks' motion to vacate, set aside, or correct sentence,
pursuant to 28 U.S.C. § 2255 (Doc. 1). In his §
2255 petition, Hicks brings an array of arguments seeking
relief. He raises various issues alleging, ineffective
assistance of counsel, and prosecutorial misconduct. The
government filed its response in opposition of Hicks'
§ 2255 petition (Doc. 3). For the following reasons,
petitioner's motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is
20, 2012, the grand jury returned a superseding indictment
against Hicks for production of child pornography in
violation of 18 U.S.C. § 2251(a) (Count 1); receipt of
child pornography in violation of 18 U.S.C. § 2252(a)(2)
(Count 2); and possession of child pornography in violation
of 18 U.S.C. § 2252(a)(4)(B) (Count 3). United
States v. Hicks, 11-cr-30207-DRH, (Doc. 30). Trial commenced
as to these counts on March 11, 2013. On March 14, 2013, the
jury found Hicks guilty on Counts 1, 2 and 3 of the
superseding indictment (Cr. Docs. 96, 97, 98, & 99).
April 14, 2014, the defendant and the government jointly
filed an agreement regarding sentencing and waiver of appeal.
(Cr. Doc. 126). In the agreement, the parties agreed that the
calculations set forth in the PSR (Cr. Doc. 118) were
correct. The agreement also laid out the terms between the
parties in which the government agreed to recommend a
sentence of not more than 180 months' imprisonment,
supervised release of not more than 10 years, no fine, and
restitution in the amount of $1, 000 to be paid to Hicks'
two identified victims. (Cr. Doc. 126). In exchange for the
government's concessions, Hicks agreed to pay the
restitution, withdraw his objections to the PSR, and
“waive certain rights he may have to contest his
conviction and sentence. . . .” Id.
Specifically, Hicks, “knowingly and voluntarily
waive[d] his right to contest any aspect of his conviction or
sentence that could be contested under Title 18 or Title 28,
or under any other provision of federal law. . . .”
with certain limited exceptions. Id.
April 25, 2014, the Court sentenced Hicks to 180 months on
Counts 1, 180 months on Counts 2, and 120 months on Count 3,
with all terms to run concurrently (Cr. Doc. 128). Hicks was
also sentenced to a 10 year term of supervised release on
each count, to run concurrently, and he was ordered to pay
$500 in restitution to his victims in the “Vicky”
and “J-Blonde” series, as well as a $300 special
assessment (Cr. Doc. 128). Judgment reflecting the same was
entered the same day (Cr. Doc. 130). Hicks did not attempt to
appeal his conviction and sentence.
April 27, 2015, Hicks filed a timely motion to vacate,
set aside, or correct sentence, pursuant to 28 U.S.C. §
2255, in which he raises three arguments: (1) ineffective
assistance of counsel on the part of Federal Public Defender
Ethan Skaggs for failing to convey an offer from the
government to him, (2) ineffective assistance of counsel on
the part of defense attorney Justin Kuehn for withdrawing his
objections and motions without consulting Hicks, and (3)
prosecutorial misconduct for the actions of Agent Derek Davis
and for failing to provide a copy of the search warrant to
Hicks during the search of Hicks' residence. The Court
shall address each argument in turn.
prisoner may move to vacate, set aside or correct his
sentence if he claims “the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a).
2255 is an extraordinary remedy because it asks the district
court “to reopen the criminal process to a person who
has already had an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th
Cir. 2007). Accordingly, relief under Section 2255 is
“reserved for extraordinary situations, ”
Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.
1996) (citing Brecht v. Abrahamson, 507 U.S. 619,
633-34 (1993)), as a collateral attack pursuant to Section
2255 is not a substitute for a direct appeal. Varela v.
United States, 481 F.3d 932, 935 (7th Cir.
a movant demonstrates changed circumstances in fact or law,
he may not raise issues already decided or waived on direct
appeal. Olmstead v. United States, 55 F.3d 316, 319
(7th Cir. 1995). A petitioner cannot raise constitutional
issues that he could have, but did not directly appeal,
unless he shows good cause for, and actual prejudice from,
his failure to raise them on appeal, or unless failure to
consider the claim would result in a fundamental miscarriage
of justice. Bousley v. United States, 523 U.S. 614,
622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87
(1977); Fountain v. United States, 211 F.3d 429, 433
(7th Cir. 2000). Likewise, a Section 2255 motion cannot
pursue non-constitutional issues that were not raised on
direct appeal regardless of cause and prejudice. Lanier
v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The
only way such issues could be heard in the Section 2255
context is if the alleged error of law represents “a
fundamental defect which inherently results in a complete
miscarriage of justice.” United States v.
Addonizio, 442 U.S. 178, 185 (1979).
raises three claims, two of which he purports to be claims of
ineffective assistance of counsel. To succeed on an
ineffective assistance of counsel claim, a petitioner must
demonstrate (1) his attorney's performance “fell
below an objective standard of reasonableness, ” and
(2) “but for counsel's unprofessional errors the
result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984).
To satisfy the first prong, “the Court must determine
whether, in light of all the circumstances, the identified
acts or omissions were outside the wide range of
professionally competent assistance.” Id. at
690. To satisfy the second prong, a petitioner must
demonstrate to a “reasonable probability” that
without the unprofessional errors, “the result of the
proceeding would have been different.” Id. at
district court's analysis begins with a “strong
presumption that the defendant's attorney rendered
adequate representation of his client.” United
States v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000).
Thus, a petitioner must overcome a heavy burden to prove that
his attorney was constitutionally deficient. Shell v.
United States, 448 F.3d 951, 955 (7th Cir. 2006). In
order to establish that counsel's performance was
deficient, the defendant must show errors so serious that
“counsel was not functioning as the ...